Dispatches from the bent world under the bright wings of the Holy Ghost

Baltimore protests, Justice Frankfurter, and revolution

It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution . . .

The Fourth Amendment, of course, protects the right of the people to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures.” Violations of those rights — e.g. general warrants, heavy-handed law enforcement tactics by the Crown’s agents — were the recurring “abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution.” Let that sink in. One of the most learned men ever to sit on the Supreme Court of the United States wrote that these abuses were “potent causes” of the Revolution — the armed insurrection we celebrate every July 4.

Right now, in Baltimore and across the United States, there is a class of law enforcement officers — not all, not most, probably not even many, but some — who have perpetuated recurring abuses that are, if anything, more aggravated than those “so deeply felt” by the Colonists that they took up arms against the British Crown. The Colonists, in Justice Frankfurter’s telling, objected to “searches without warrants and searches with warrants unrestricted in scope.” Bad stuff, to be sure, but not in the same class as, say, shooting a fleeing unarmed burglar in the back of the head.[1] Or — to bring this home to what just happened in Baltimore — seizing a non-violent suspect merely forfleeing, and that suspect suffering a severed spine while in police custody.

Significantly, many of the officers who transgress against the Fourth Amendment rights of American citizens will have their actions rationalized and justified. Rather than having the fruits of their unlawful searches and seizures suppressed at criminal trials, those noxious fruits are routinely admitted via doctrines like reasonable suspicion and the so-called good-faith exception. Rather than making lawless officers face investigation or prosecution, law enforcement departments and prosecutors all too often close ranks to protect the worst offenders among them. Even in civil actions under the Civil Rights Act, the judiciary clothes the transgressing officers with a “qualified immunity” that protects them even from being sued in all but the most extreme cases. These doctrines make the Fourth Amendment hollow, and impotent to protect the rights it was crafted to protect.

What does all this mean for what’s happening in Baltimore?

I’ll start with the obvious: it does not justify the worst excesses of the Baltimore protests — e.g. the wanton destruction of private citizens’ property, and personal injuries to innocent bystanders. Most people want nothing but to live peaceful lives and make an honest living, molested neither by lawless law enforcement officers nor by the rioters who say (in weird unison) with the badge-carrying thugs: “I am the law.” That anyone in Baltimore has suffered personal injuries, or loss of homes or livelihoods, is deplorable. One evil does not cure the other.

But as a matter of principle, and as a matter of realpolitik, Justice Frankfurter’s dissent in Rabinowitz should give the police apologists and the critics of the protestors — the vast majority of whose protests, incidentally, have been nonviolent — pause. When Fourth Amendment rights are regarded as “technicalities,” and when transgressions of those rights are repeatedly rationalized by police departments, prosecutors, attorneys general, and judges across the land, revolution is not far behind.